SURJA NARAYAN PRADHAN Vs. JUMDEN LEPCHA

JUDGEMENT

(1.) The regular first appeal seeks to challenge the judgment and decree dtd. 19/12/2019 passed in Money Suit No.279 of 2017 by the learned District Judge, Special Division-I Sikkim at Gangtok (learned District Judge) dismissing the suit.

(2.) The plaint was filed by the appellant-Surja Narayan Pradhan (the plaintiff) against the respondents-Jumden Lepcha (defendant no.1) and O.T. Lepcha (defendant no.2). The plaint alleged that the plaintiff had taken on lease a property owned by the defendants for running a hotel. According to the plaint it was agreed between the plaintiff and the defendant no.1 that the plaintiff would construct and extend further one and half stories to the existing residential building, renovate the premises and convert it into a hotel at the cost of the plaintiff. It was the case of the plaintiff that, he had, during the course of construction deposited money in the loan account of defendant no.1 maintained in the State Bank of India towards payment of loan availed by the defendant no.1 in the name of the hotel. It was further averred that the plaintiff deposited money in the account of defendant no.2 as well in the State Bank of India and Axis Bank India Ltd. On completion of the construction, extension and renovation in the year 2010 he started running the hotel on mutual consent without drawing any lease agreement. It is averred that, thereafter, in the year 2013 a lease deed dtd. 18/3/2013 (exhibit-12) was drawn between the plaintiff and defendant no.1 for a period of eleven months commencing from 1/5/2013 to 31/3/2014 at an annual lease rent of Rs.13.00 lakhs excluding water and electricity charges. The construction and renovation work on the premises was calculated by the parties jointly and it was found that the plaintiff had incurred Rs.55.00 lakhs which was acknowledged in the lease deed. In fact the defendant no.1 had also undertaken to pay back the said amount between 21/3/2014 to 31/3/2014. The plaintiff further avers that on the expiry of the stipulated period and when the defendant no.1 was unable to repay the sum of Rs.55.00 lakhs, an agreement dtd. 15/10/2014 (exhibit-13) was drawn between the defendant no.1 and the plaintiff whereby the defendant no.1 agreed to pay a sum of Rs.13,75,000.00 in cash on 17/7/2014, a further sum of the same amount in cash on 27/9/2014 and pay the remaining amount of Rs.27,50,000.00 by two post dated cheques. It is stated that the defendant no.1 made payment of Rs.27,50,000.00 in two instalment i.e. 17/7/2014 and 27/9/2014 and informed the plaintiff that she would pay the remaining amount of Rs.27,50,000.00 by two cheques payable from the account of defendant no.2. On 15/10/2014 the defendant no.2 issued two post dated cheques for a sum of Rs.13,75,000.00each, both drawn at State Bank of Sikkim, towards payment of outstanding amount of Rs.27,50,000.00. It is averred that before presentation of the first cheque bearing No.070618 dtd. 30/12/2014 the defendant no.2 paid Rs.13,75,000.00 in cash and resultantly the cheque was not presented for payment. On 17/4/2015 the plaintiff presented the second post dated cheque bearing No.070619 dtd. 30/3/2015 which was however, returned by i.e. Axis Bank Ltd. on account of insufficient funds. The cheque was re-presented on 9/5/2015 which was once again returned unpaid due to insufficient funds. Legal notices dtd. 25/5/2015 and 6/7/2015 were thereafter issued which was followed by a proceeding under sec. 138 of the Negotiable Instrument Act, 1881 which was ultimately withdrawn. Ultimately, the suit was filed in the year 18/12/2017 against the defendants seeking a decree of Rs.15,40,000.00 inclusive of interest calculated @ 12 % per annum with a further prayer for pendentlite and future interest @ 12% per annum.

(3.) The defendants filed their joint written statement. They pleaded inter alia that the suit was not maintainable; that there is no cause of action for filing the suit; that the plaintiff had no locus standi to file the suit; the suit was barred by limitation and the suit was bad for non-joinder of necessary parties. The defendants while denying that there was any agreement between the plaintiff and the defendant no.1 also pleaded that the agreement was entered by the defendant no.1 with one Saraswati Pradhan, wife of the plaintiff. It was denied that the plaintiff made any deposit in the account of the defendants and stated that lease rent used to be paid by Saraswati Pradhan into the said accounts and not by the plaintiff. It was stated that Saraswati Pradhan was the one who ran the hotel and not the plaintiff. The drawing of the lease deed (exhibit-12) was admitted by the defendants. It was stated that Saraswati Pradhan and her husband had told the defendant no.1 that Saraswati Pradhan had incurred the expense of Rs.55.00 lakhs for the development of the property of the defendant no.1 which was accepted by the defendant no.1 in good faith; that in terms of the lease deed (exhibit-12) the entire amount of Rs.55.00 lakhs had been paid by the defendant no.1 to the plaintiff; in reply to paragraph 9 of the plaint, that no amount was payable to the partnership firm "Kasturi Group of Hotels and Living " (the partnership firm). It was asserted that the lease deed (exhibit-12) was entered by defendant no.1 with the plaintiff in his individual capacity and not in the capacity of one of the partners of the partnership firm. It was submitted that the agreement (exhibit-13) is nonest and its terms not enforceable. The defendants admitted that the sum of Rs.27,50,000.00 had been paid in two instalments on 17/7/2014 and 27/9/2014. It was further stated that defendant no.1 paid another sum of Rs.27,50,000.00 in cash in the month of October, 2014. However, no money receipt had been obtained. It was stated that the post dated cheques issued by the defendant no.2 were not returned by the plaintiff and the defendants did not insist on its return due to the good relationship they shared. It was further asserted that before the said cheques were presented for payment, the defendant no.1 paid the entire dues of the plaintiff by cash in the last week of October, 2014.